2018 Mass. App. Div. 209

July 20, 2018 - December 20, 2018

Appellate Division Western District

Court Below: District Court, East Brookfield Division

Present: Hadley, P.J., Poehler & D'Angelo, JJ.

No brief filed for the petitioner.

Melanie S. Lewis for the respondent.

D'ANGELO, J. On March 29, 2017, a petition for commitment pursuant to G.L. c. 123, § 35 was filed by the respondent's father. After a hearing, an order of commitment was issued and the respondent appealed. We have considered this appeal and have determined that the order of commitment was not supported by clear and convincing evidence and must be vacated.

At the hearing on the petition, Dr. Alan Schonberger ("Schonberger"), a licensed psychologist and a designated forensic psychologist, was the only witness. Prior to testifying, the doctor interviewed the petitioner, spoke to the respondent's mother by telephone, and interviewed the respondent. Dr. Schonberger testified that the respondent's parents reported that their daughter was unemployed, was homeless, and was in a physically abusive relationship. The respondent's parents recently had only limited contact with her. The petitioner said he had not had any direct contact for approximately a month prior to the hearing. The respondent's mother indicated that over the past month, she had been in the respondent's presence only on the day prior to the hearing. However, the respondent's mother stated that she had received four telephone calls from the respondent in the past month. The mother told the doctor that the respondent had acknowledged over the telephone that she had a drug problem and said that she wanted help. The mother had also reported that in the course of the same day, the respondent had climbed a ladder to the second floor of the home and had been outside banging on the second-floor window, and had fallen down some stairs. It was unclear based on the testimony what the condition of the respondent was during this episode the day prior to the hearing.

During her interview, the respondent acknowledged climbing up a ladder the day before the hearing but denied she had been using any drugs. She told the doctor that she had taken pain pills for two months approximately two years earlier and then "went into a detox." She claimed she had not used opiates since that time and did not believe she had a current problem with drugs or alcohol. The respondent has two children. One child, who was six or seven years old at the time of the hearing, was in the custody of the Department of Children and Families ("DCF"). The respondent claimed the child was taken away after an altercation between her and the child. The petitioner stated that at the time of that incident, DCF had reported that the respondent was abusing drugs and required drug treatment. The respondent denied this. Four months prior to the hearing, DCF took custody of the second child. The petitioner and the respondent's mother said the infant was taken from the respondent because the baby had been born with

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drugs in her body. The respondent declined to sign a release, and the doctor could not verify any of this information with DCF.

After providing the court with this information, Dr. Schonberger opined that the respondent had an opiate dependence disorder; that her drug use was out of control; that she was a danger to herself; and that she could not adequately care for herself because of her drug use. He recommended commitment. The respondent offered no evidence. At the conclusion of the hearing, the court granted the petition and committed the respondent to the Women's Addiction Treatment Center for a period not to exceed ninety days. [Note 1]

Under G.L. c. 123, § 35, a petition for an order of commitment of a person believed to have a substance use disorder may be filed by a police officer, physician, spouse, blood relative, guardian, or court official in any division of the District Court or the Juvenile Court. Id. When the respondent appears in court, a qualified physician, psychologist, or social worker must examine her. Id. The hearing on the petition follows the examination, and it must include competent medical testimony and the petitioner may testify and introduce evidence. Id. If the judge finds, based on clear and convincing evidence, that (1) the respondent has a substance use disorder as defined in § 35, and (2) there is a "likelihood of serious harm" as a result of the respondent's substance use disorder, the judge may order the respondent committed to a suitable facility for a period not to exceed ninety days. Id.

Likelihood of serious harm may be established by a showing of: "(1) a substantial risk of serious physical harm to the respondent; (2) a substantial risk of serious physical harm to other persons; or (3) a very substantial risk of physical 'impairment or injury' to the respondent resulting from an inability to protect himself or herself in the community." Matter of G.P., 473 Mass. 112, 117 (2015), citing G.L. c. 123, § 1. The first prong requires a showing of "'evidence of, threats of, or attempts at, suicide or serious bodily harm' to the respondent." Id. at 125, quoting G.L. c. 123, § 1. The second prong requires "homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them." Id. at 126, quoting G.L. c. 123, § 1. The third prong requires a higher level of proof than the first two. "[A] 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Id. at 128. "[P]roof that the respondent is a chronic alcoholic or substance abuser, by itself, is insufficient to establish a very substantial risk." Id. Very substantial risk is "to be shown by evidence that (1) the respondent's judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect himself or herself from physical harm, and (2) the respondent's community does not include any reasonably available external source of adequate protection." Id. at 128-129.

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Also, to establish a likelihood of serious harm, a showing of imminence is required. See Matter of G.P., supra at 127, 129. A "petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent's alcohol or substance abuse, or both." Id. at 127. When a court determines whether a substance use disorder presents a "very substantial risk" under the third prong of the statute, the imminence of the risk is a factor that is given greater consideration than with respect to the other two prongs. Id. at 129.

In this case, there was no evidence of threats of or attempts at suicide or serious bodily harm to the respondent. Therefore, a commitment order under the first prong was not supported by the evidence. Similarly, there was no evidence that established a substantial risk of serious physical harm to others under the second prong. Therefore, the issue to be determined on appeal is whether there was sufficient evidence to support a finding of a very substantial risk of physical impairment or injury to the respondent resulting from her inability to protect herself in the community.

We note, as we did in Matter of D.S., 2017 Mass. App. Div. 157, that there is no statutory requirement for a judge at a hearing pursuant to G.L. c. 123, § 35 to issue findings, written or otherwise. Id. at 159. The hearing judge could have relied on the testimony of Dr. Schonberger. The credibility and weight of the evidence are for the fact finder. Demoulas v. Demoulas, 428 Mass. 555, 565 (1998). How a hearing judge weighs the evidence and gauges the credibility of witnesses is entitled to deference by this Division. Custody of Eleanor, 414 Mass. 795, 800 (1993) (because trial judge has opportunity to observe witness demeanor and assess candor, appellate courts are especially reluctant to review trial judge's assessment of witness credibility). The only evidence presented at the hearing on this issue was the information the doctor learned from the respondent's mother and father. In summary, the judge who presided at the commitment hearing could have found that the respondent was homeless and unemployed; that she had a history of past opiate use; and that she had in the past month expressed to her mother a desire for some type of help regarding her drug use. The judge also could have found that on the day before the hearing, the respondent had climbed a ladder and had banged on a second-floor window, and that she had fallen down some stairs.

An order of commitment under G.L. c. 123, § 35 results in a substantial curtailment of liberty, and therefore, there must be evidence that the danger or risk of harm on account of the alcohol or substance abuse at issue was imminent and that the person's judgment is so affected that she is unable to protect herself in the community. See Matter of G.P., supra at 128. The fact that a respondent is a chronic alcoholic or substance abuser, by itself, is insufficient to establish a "very substantial risk" of harm under the third prong. Id. In the case at bar, the evidence was unclear as to when the respondent last abused drugs, and the only evidence of recent "risk" was the episode from the day before where the respondent tripped on some stairs.

Applying the principles most recently set out by the Supreme Judicial Court in Matter of G.P., we conclude that the evidence presented in this case was not sufficient to support a finding of a "very substantial risk of physical impairment or injury." For this reason, the decision of the East Brookfield District Court is reversed and the order of commitment is vacated. [Note 2]


[Note 1] Although the respondent's commitment order has ended, this appeal is not moot. The Supreme Judicial Court has recently stated, "Appeals from expired or terminated commitment . . . orders . . ., like appeals from expired harassment prevention orders (G.L. c. 258E) or expired abuse prevention orders (G.L. c. 209A), 'should not be dismissed as moot where the parties have a continuing interest in the case.' At the very least a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued'" (citations omitted). Matter of F.C., 479 Mass. 1029 (2018). The same analysis applies to G.L. c. 123, § 35 commitments.

[Note 2] Because we reverse the order of commitment on the sufficiency of the evidence, we do not need to reach other issues raised by the respondent.